Mixed Race Studies

Law and the Boundaries of Place and Race in Interracial Marriage: Interstate Comity, Racial Identity, and Miscegenation Laws in North Carolina, South Carolina, and Virginia, 1860s-1960s

Akron Law Review
Volume 32, Number 3 (1999)
pages 557-575

Peter Wallenstein, Professor of History
Virginia Polytechnic Institute and State University

In North Carolina in 1869, Wesley Hairston, a black man, and Puss Williams, a white woman, went on trial in Forsythe County for “fornication and adultery.” They claimed they were married, but the judge instructed the jury that no such marriage could be valid in North Carolina. When the jury convicted both defendants, they appealed the judge’s instruction and the jury’s verdict. The North Carolina Supreme Court dashed their hopes when it declared: “The only question in this case is, whether the intermarriage of whites and blacks is lawful.” A unanimous appeals court rejected the “pretended marriage” and upheld the convictions.

Hairston and Williams did not see their convictions as consistent with the facts. They thought they had both contracted a marriage and found instead that they had each committed a felony. Other couples ran into similar problems. Brought to court, some argued that they had entered a valid marriage and, having moved into another state, they should not be subject to the enforcement of its laws against interracial marriage. Others, challenging the premise that they did not share one racial identity, argued that, since they were both black or both white, the miscegenation law should not reach their marriage.

This essay draws from case materials in three states to explore two of the main problems in enforcing—or escaping conviction under—laws in the United States against interracial marriage during the hundred years after the Civil War. Questions of interstate comity and racial identity, though not both involved in every miscegenation case, would remain issues in many such cases as long as laws against interracial marriage remained in effect. Only in 1967, when the U.S. Supreme Court decided Loving v. Virginia and declared such laws unconstitutional, would the boundaries of race and place no longer have any bearing on the law of marriage between a man of one race and a woman of another…

…3. But What Race Is She Really?

In October 1881, John Crawford and Maggie Dancey went on trial for violating South Carolina’s new law against interracial marriage. After courting in North Carolina, they had decided to marry. The couple had heard that North Carolina had a stringent law against their doing so but, believing that South Carolina had no such law, they thought they had a remedy. Crawford moved back south across the state line to his home in York County, and Dancey soon followed from her family’s home in Mooresville, just north of Charlotte. They approached a black preacher, Edward Lindsay, about their wishes, and he assured them that they could marry in South Carolina. The ceremony took place, and their arrests soon followed.

The newlyweds’ marriage did not involve the question of comity, but it definitely involved another thorny issue, the question of racial identity. John Crawford testified that the fair-skinned woman he had married came from a family that, back in her hometown, was regarded as mixed-race. He had seen his wife’s grandmother, a “bright mulatto,” he said. The family attended a black church, associated only with African Americans, and despite their color, seemed to fall on the black side of the great racial divide. The couple’s argument was that, even though Maggie was of “fair complexion,” with “flaxen or light auburn hair and light blue eyes,” she was black just the same as her “dark mulatto” husband. If proved, the couple had not, after all, broken the law.

The fact that the only evidence in the case consisted of the defendants’ own testimony left the court perplexed. Because Maggie Dancey went on trial some distance from her family’s residence, no local witnesses could help the court with testimony regarding the Dancey family’s racial reputation. The judge called upon a white medical doctor, W. J. Whyte, to offer his expert testimony, but the doctor, after a brief examination in the waning light of day, reported the woman’s identity difficult to pin down. The judge held the trial over to the next morning. The doctor tried again but complained that the microscope with which he examined the woman’s hair and skin seemed inadequate to the task. If forced to choose, he held to his original opinion that Maggie Dancey was a white woman, but he could not be certain.

The judge put the matter in the hands of the jury. He told them that if they were unsure, they should resolve their doubt in favor of the woman. After an hour’s deliberation, the jury reported its verdict. Maggie Dancey was white, and John Crawford was not. Both were guilty…

Read the entire article here.

Disentangling “Race” and Indigenous Status: The Role of Ethnicity

Queen’s Law Journal
Volume 33, Issue 2 (Spring 2008)
pages 487

Sébastien Grammond, Dean and Associate Professor of Law
University of Ottawa

The notion of “race” is a social construction, discredited today by scientists as factually unsound. Individuals cannot be organized into discrete groups of people based solely on physical characteristics. An individual’s identity is now understood to consist of more than the contents of one’s blood. This more robust understanding takes account of other important elements of identity, such as the individual’s cultural and historical makeup. Despite this progress, the author argues, notions of race (sometimes in the form of blood quantum requirements) still define indigenous status in many countries, including Canada. The author posits that group identity would be best understood by reference to the concept of ethnicity, which leads to a broader understanding of identity that goes beyond the biological classifications associated with race.

The author analyzes the American Supreme Court case of Rice v. Cayetano, where the majority found that an ameliorative provision of the Hawaiian Constitution violated the Fifteenth Amendment of the U.S. Constitution due to its racial distinctions. The author contends that what separated the majority and dissenting judgements was the fact that the former took a racial view of indigenous identity and the latter an ethnic view. The majority focused on the word “race” in the impugned provision, thereby automatically labeling it as racist. According to the dissent, the intent of the provision was to recognize status on the basis of ancestry, and not on the basis of rigid blood purity requirements, as a racial distinction would. The author supports the dissenting view. He argues that while the concept of race is incoherent, ancestry might be a legitimate definition of identity, as it can reflect non-biological elements transmitted by descent. Rice v. Cayetano demonstrates how an inaccurate definition of indigenous status can undermine public policy initiatives meant to redress harm done to indigenous peoples. The author concludes by proposing that while ancestry may be a satisfactory determinant of ethnicity, group identity would be better understood with reference to other relevant sociological factors, such as language, residence, culture, participation in community events and self-identification.

Read the entire article here.

Pink and Blue in Black and White: Why Binary, Prescriptive Approaches to Human Categorization Still Won’t Yield the Desired Result

IIT Chicago-Kent College of Law
Honors Scholars Program
2010
23 pages

Karlyn Meyer

INTRODUCTION: SAME-SEX MARRIAGE AND MISCEGENATION

A Texas court asked “can a physician change the gender of a person with a scalpel, drugs and counseling- or is a person’s gender immutably fixed by our Creator at birth?” The Kansas Supreme Court echoed this inquiry. What the Texas Court characterized as a deep, philosophical question. others have called “loaded question.” The court’s framing of the issue previewed its ruling from the opinion’s first page. But the court’s Terminology indicated just how complicated The question was.

The question arose in a suit under Texas’ wrongful death statute. Christie Littleton lost her husband Jonathon in 1996. To have standing as his beneficiary, she had to be his surviving spouse. But Texas law threatened the validity of their marriage. This is because forty-four years earlier. Christie was bom a “physically healthy male” named Lee Cavalos, Jr. Thus the court posed. “[i]f Christie is a woman, she may bring this action. If Christie is a man. she may not.” When Christie was fifteen years old. Texas was one of fifteen states whose anti-miscegenation laws were overturned by the Supreme Court in Loving v. Virginia. In the years prior to this, the majority of states promulgated statutes preventing white people from marrying, or at least procreating, with people of color. In these states, the desire to prevent miscegenation was rivaled only bv the challenge of categorizing the races.

The Littleton opinion showed a court grappling with biological and social factors in an attempt to categorize Christie Littleton. The court framed the issue as determining her gender: male or female. But gender, like race, is a social construction. And like race, while it is heavily associated with biological characteristics, it lacks a true biological definition. Still, these constructions are firmly rooted in our society, and have served as a predicate to social citizenship. This citizenship, or the “status bestowed on those who are full members of a community. has been conditioned on race as well as conforming to a specific set of sexual norms. But the state’s continuous attempts to define its populace, thus regulating its citizens, are as complicated when the categories are male and female as when the categories are black and white…

Read the entire essay here.

Racing to Justice: Transforming Our Conceptions of Self and Other to Build an Inclusive Society

Indiana University Press
2012-08-16
336 pages
6 x 9
Cloth ISBN: 978-0-253-00629-5

john a. powell, Professor of Law; Director Haas Diversity Research Center
University of California, Berkeley

Foreword by:

David R. Roediger, Kendrick Babcock Professor of History and African American Studies
University of Illinois

Renowned social justice advocate john a. powell persuasively argues that we have not achieved a post-racial society and that there is much work to do to redeem the American promise of inclusive democracy. Culled from a decade of writing about social justice and spirituality, these meditations on race, identity, and social policy provide an outline for laying claim to our shared humanity and a way toward healing ourselves and securing our future. Racing to Justice challenges us to replace attitudes and institutions that promote and perpetuate social suffering with those that foster relationships and a way of being that transcends disconnection and separation.

Table of Contents

• Acknowledgments
• Introduction: Moving Beyond the Isolated Self
• I. Race and Racialization
  • 1. Post-Racialism or Targeted Universalism?
  • 2. The Colorblind Multiracial Dilemma: Racial Categories Reconsidered
  • 3. The Racing of American Society: Race Functioning as a Verb Before Signifying as a Noun
• II. White Privilege
  • 4. Whites Will Be Whites: The Failure to Interrogate Racial Privilege
  • 5. White Innocence and the Courts: Jurisprudential Devices that Obscure Privilege
• III. The Racialized Self
  • 6. Dreaming of a Self Beyond Whiteness and Isolation
  • 7. The Multiple Self: Implications for Law and Social Justice
• IV. Engagement
  • 8. Lessons from Suffering: How Social Justice Informs Spirituality
• Afterword
• References
• Index

Mixed-Race and Modernity in Colonial India: Changing Concepts of Hybridity Across Empires

Routledge
2012-02-29
208 pages
Hardback ISBN: 978-0-415-50429-4

Adrian Carton
Centre for Cultural Research
University of Western Sydney, Australia

This book traces changing concepts of mixed-race identity in early colonial India by contrasting Portuguese, British and French colonial spaces. Starting in the sixteenth century, the author shows how the emergence of race was always shaped by affiliations based on religion, class, national identity, gender and citizenship across empires. In the context of increasing British power, the central core of the book looks at the Anglo-French tensions of the eighteenth century to consider the relationship between modernity and race-making. Arguing that different forms of modernity produced divergent categories of hybridity, the book considers the impact of changing political structures on mixed-race communities. With its emphasis on specificity, it situates current and past debates on the mixed-race experience and the politics of whiteness in broader historical and global contexts.

The book contributes to the understanding of race-making as an aspect of colonial governance, and it illuminates some margins of colonial India that are often lost in the shadows of the British regime. It is of interest to academics interested in world/global history, postcolonial studies, South Asian imperial history and critical mixed-race studies.

Contents

1. Introduction
2. Portuguese Legacies
3. Race and Reform
4. Contested Colonialisms
5. French Complexions
6. Race and Fraternity
7. Conclusion

Brazil Approves University Affirmative Action Bill

Associated Press
2012-08-08

Stan Lehman

San Paulo—The Brazilian Senate has approved an affirmative action bill that reserves half the spots in federal universities for high school graduates of public schools, and distributes them according to the racial makeup of each state.

The Senate’s news agency says the bill that was approved late Tuesday now goes to President Dilma Rousseff, who is expected to approve it.

The reserved spots will be distributed among black, mixed race and indigenous students proportionally to the racial composition of each state, the official agency said…

…The Supreme Court ruled earlier this year that it was constitutional for universities to use racial quotas.

Brazil has more citizens of African ancestry than any nation other than Nigeria. Fifty-one percent of Brazil’s 192 million people are black or of mixed-race,

Backers say the use of scholarships, quotas and other policies aimed at getting more blacks and mixed-race Brazilians into universities is needed to right the historic wrongs of slavery, centuries of stark economic inequality and a society in which whites are overwhelmingly in leadership roles in government and business…

Read the entire article here.

Shades of Passing (AAS 340 / ENG 391 / AMS 340)

Princeton University
Fall 2012-2013

Anne A. Cheng, Professor of English and African American Studies

This course studies the trope of passing in 20th century American literary and cinematic narratives in an effort to re-examine the crisis of identity that both produces and confounds acts of passing. We will examine how American novelists and filmmakers have portrayed and responded to this social phenomenon, not as merely a social performance but as a profound intersubjective process embedded within history, law, and culture. We will focus on narratives of passing across axes of difference, invoking questions such as: To what extent does the act of passing reinforce or unhinge seemingly natural categories of race, gender, and sexuality?

Sample reading list:
William Faulkner, Light in August
Toni Morrison, The Bluest Eye
Nella Larsen, Passing
Chang-rae Lee, A Gesture Life
Douglas Sirk (director), Imitation of Life (film, 1959)
Woody Allen (director), Zelig (film, 1983)

Mississippi Black Code (1865)

America’s Reconstruction: People and Politics After The Civil War
Digital History: using new technologies to enhance teaching and research
2011

The Civil Rights of Freedmen in Mississippi (Approved November 25, 1865)

Section 1. Be it enacted by the legislature of the State of Mississippi, That all freedmen, free Negroes, and mulattoes may sue and be sued, implead and be impleaded in all the courts of law and equity of this state, and may acquire personal property and choses in action, by descent or purchase, any may dispose of the same, in the same manner, and to the same extent that white persons may: Provided that the provisions of this section shall not be so construed as to allow any freedman, free Negro, or mulatto to rent or lease any lands or tenements, except in incorporated town or cities in which places the corporate authorities shall control the same.

Sec. 2. Be it further enacted, That all freedmen, free Negroes, and mulattoes may intermarry with each other, in the same manner and under the same regulations that are provided by law for white persons: Provided, that the clerk of probate shall keep separate records of the same.

Sec. 3. Be it further enacted, That all freedmen, free Negroes, and mulattoes, who do now and have heretofore lived and cohabited together as husband and wife shall be taken and held in law as legally married, and the issue shall be taken and held as legitimate for all purposes. That it shall not be lawful for any freedman, free Negro, or mulatto to intermarry with any white person; nor for any white person to intermarry with any freedman, free Negro, or mulatto; any person who shall so intermarry shall be deemed guilty of felony and, on conviction thereof, shall be confined in the state penitentiary for life; and those shall be deemed freedmen, free Negroes, and mulattoes who are of pure Negro blood, and those descended from a Negro to the third generation inclusive, though one ancestor of each generation may have been a white person…

Read the entire code here.

Unsuitable Suitors: Anti-Miscegenation Laws, Naturalization Laws, and the Construction of Asian Identities

Law & Society Review
Volume 41, Issue 3 (September 2007)
pages 587–618
DOI: 10.1111/j.1540-5893.2007.00315.x

Deenesh Sohoni, Associate Professor of Sociology
The College of William & Mary, Williamsburg, Virginia

In this article, I use state-level anti-miscegenation legislation to examine how Asian ethnic groups became categorized within the American racial system in the period between the Civil War and the civil rights movement of the 1960s. I show how the labels used to describe Asian ethnic groups at the state level reflected and were constrained by national-level debates regarding the groups eligible for U.S. citizenship. My main point is that Asian ethnic groups originally were viewed as legally distinct—racially and ethnically, and that members of these groups recognized and used these distinctions to seek social rights and privileges. The construction of “Asian” as a social category resulted primarily from congressional legislation and judicial rulings that linked immigration with naturalization regulations. Anti-miscegenation laws further contributed to the social exclusion of those of Asian ancestry by grouping together U.S.-born and foreign-born Asians.

Read or purchase the article here.

Equality Trouble: Sameness and Difference in Twentieth-Century Race Law

California Law Review
Volume 88, Issue 6 (2000)
pages 1923-2015

Angela P. Harris, Professor of Law
University of California, Davis

In this Essay, Professor Harris suggests that “race law” consists not only of antidiscrimination law, but law pertaining to the formation, recognition, and maintenance of racial groups, as well as the law regulating the relationships among these groups. Harris argues that a constant tension in the story of race law in the past century has been the effort to reconcile constitutional and statutory norms of equality with the desire for white dominance. In the first part of the century, it was assumed that the fact of racial difference required management through sound public policy; in the second part of the century, race gradually became understood as an arbitrary distinction that the law should ignore. Neither treating race as difference nor as sameness, however, has succeeded in accomplishing racial justice.

Read the entire article here.